by Mark R. Malek and Jason A. Fischer

…and the U.S. Economy at Large

Most common forms of intellectual property find their origin in the United States Constitution.  With the goal of “promot[ing] the progress of science and the useful arts,” Article I, Section 8, Clause 8 gives Congress the power to pass laws that “secur[e] for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . . .”  From this mandate of the Founders, we have Titles 17 and 35 of the United States Code, which cover copyrights and patents, respectively.

Why is intellectual property (sometimes abbreviated “IP”) so important that the drafters of the Constitution felt that it had to be built into the supreme law of the land?  Probably because IP is invaluable to economic development.  Unlike other forms of property, IP can be bought and sold without depletion.  Raw materials do not need to be expended to generate new profit.  IP is a truly unlimited resource.

While it may be easy to see how IP can benefit a business that deals in technology or media, it may be less obvious how other kinds of companies can leverage intangible assets.  In reality, any going business concern can benefit from ownership and proper capitalization of IP.  To help you better understand how this may be, the following is a quick summary of two common flavors of IP.  Hopefully, you will recognize some of your own IP asset in the descriptions below.

Patents

In order to be patentable, an invention must be useful, novel, and non-obvious.  The United States Patent Office examines each application for a patent to determine if these three thresholds are met.  Patents provide inventors with the right to exclude others from making, using, selling, or offering for sale, their inventions and, depending on the type of patent, protection can last between 14 and 20 years from the date of filing.

Patent protection can be very important for businesses with new and innovative products, as well as for service providers, if the manner in which they provide their service meets the above-referenced standard for patentability.

Patents generally protect the functionality of an invention and allow inventors to maintain a competitive advantage for a fixed period of time.  Without patent protection, and unless an inventor maintains a trade secret in their invention, there really is nothing to stop a competitor from simply copying an invention and using it to advance their own business.  The protection granted to inventors provides an incentive to invent and advance science and technology.  The U.S. economy is dependent on the advancement of technology, and providing appropriate patent protection to inventors ensures that new technologies continue to grow our economy.

Copyrights

Copyright law protects original works of authorship that have been fixed in any tangible medium of expression.  Pretty much anything that you can write down or record is automatically protected from direct copying without your permission.  Everything from that flier for your company’s last promotion to the business plan that you spent weeks drafting in preparation for that product launch is covered.  As long as it is original, and as long as you took the time to get it down on paper, you have copyright protection for the operative period, which can last up to 125 years, depending on the circumstances.

The “originality” requirement of the copyright statute is a very low hurdle.  As long as you created it, and as long as it has the smallest amount of creativity, then a work of authorship qualifies for automatic protection.  Only the most basic and unoriginal material is considered ineligible for protection.

Depending on how you would like to use your protection, registration with the United States Copyright Office may be required.  Registration is a simple and fairly inexpensive process, and it can be done online for most works.

Copyright protection provides an important mechanism for ensuring that your business can reap the proper reward from materials that could be copied by an unscrupulous rival.  As an example, companies that invest thousands of man-hours in developing a software product would likely forego such a project knowing that a competitor could just steal the resulting lines of code.

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Mark Malek is the managing partner of the Intellectual Property Section at the firm of Zies Widerman & Malek in Melbourne.  Jason Fischer is the firm’s newest IP associate.  Both lawyers are admitted to practice before the USPTO and the Florida Bar.  Learn more at http://tacticalip.com